Planned Parenthood Calls on Congress to Enact Prevention First to Protect Basic Health Care for Women

New York, NY — Planned Parenthood Federation of America (PPFA) responded with shock and disappointment to Thursday’s U.S. Court of Appeals for the Eighth Circuit ruling that it is not sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964 (“Title VII”) for an employer to exclude coverage for prescription contraception, even if it covers all other preventive prescription drugs and devices. This is the first ruling by an appellate court on the merits of whether Title VII, the federal statute that prohibits employment discrimination, bars contraceptive exclusions.

The case, In Re Union Pacific Railroad Employment Practices Litigation, overturns a Nebraska district court ruling that Union Pacific’s contraceptive exclusion constituted illegal “pregnancy discrimination” because it denied women coverage for prescription drugs and devices to prevent pregnancy while covering a broad array of prescriptions to prevent other, non-pregnancy-related conditions. The ruling is binding against all unionized female employees of Union Pacific, the largest railroad in North America, with more than 50,000 workers throughout the westernmost two-thirds of the nation. The ruling is also binding on courts within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) and would most likely be considered persuasive by other courts.

“This ruling is an outrageous step backwards for women’s health,” said Cecile Richards, president of PPFA. “Birth control is basic health care, and health insurance should cover it.”

On July 22, 2005, the U.S. District Court for the District of Nebraska, Judge Laurie Smith Camp presiding, ruled that Union Pacific’s policy constituted sex discrimination and ordered Union Pacific to cover all FDA-approved methods of prescription contraception, which are only used by women, in its worker health plans on the same terms that it covers other prescriptions.

“The Eighth Circuit’s reversal erodes the landmark 2000 Equal Employment Opportunity Commission decision,” said Roberta Riley, an attorney at Planned Parenthood of Western Washington who represents the Union Pacific plaintiffs, and had represented the plaintiffs who won the 2000 EEOC Policy Decision against their employer. “Title VII prohibits employers from making employment decisions — including what health care benefits to offer — on the basis of sex or pregnancy. But that’s exactly what Union Pacific did in this case.”

“This is a call to action for Congress to protect and expand contraceptive coverage by enacting the Prevention First Act,” said Richards. Prevention First requires health plans to cover prescription birth control, expand access to reproductive health care services and education programs, and prevents the spread of sexually transmitted infections.

The three judge panel of the Eighth Circuit voted 2 to1 to reverse the lower court decision with Judge Kermit Bye dissenting. Bye disagreed with the majority’s reasoning that an employer’s treatment of condoms was the proper legal comparator. “Union Pacific has not identified any health insurance policy which would provide coverage for non-prescription, contraceptive devices available in drug stores and gas stations nationwide.” Bye further reasoned, “[W]omen are uniquely and specifically disadvantaged by Union Pacific’s failure to cover prescription contraception.” "The majority decision was written by Raymond Gruender, appointed by George W. Bush, and joined by Pasco Bowman, appointed by Ronald Reagan."